336. Subpoenas and witness summonsesRead more...
A party to a criminal proceeding may apply for the issue of a subpoena in accordance with the rules of court or a witness summons in accordance with the Magistrates' Court Act 1989, as the case requires.
81. Non-appearance of accused charged with indictable offenceRead more...
If an accused does not appear in answer to a summons to answer to a charge for an indictable offence which has been served in accordance with this Act, the Magistrates' Court may issue a warrant to arrest the accused.
Notes
1. Section 25 sets out the consequences of failing to appear in answer to a notice to appear.
2. Section 328 sets out who may appear on behalf of an accused.
36. How preliminary brief must be served
(1)A preliminary brief must be served personally on the accused in accordance with section 391 unless the informant is satisfied that ordinary service is appropriate in all the circumstances.
Note
Section 394 provides for ordinary service.
(2) In considering whether to effect service of a preliminary brief by
ordinary service, the informant must consider whether it is an appropriate
method of service in all the circumstances as known by the informant
including-(a) the nature and gravity of the alleged offence;
(b) whether the accused has previously been found guilty or convicted of
any similar offence;
(c) the period of time that has elapsed since the accused's address for
service was ascertained;
(d) the manner of service of the summons to answer to the charge.
19. Extension of return date if summons not servedRead more...
(1) If the informant has not served a summons to answer to a charge, the appropriate registrar may extend a return date specified in the summons without cause on one occasion on the application of the informant-
(a) before the return date; or
(b) within 28 days after the return date.
(2) The appropriate registrar may extend a return date on a subsequent occasion on the application of the informant-
(a) before the current return date; or
(b) within 28 days after the current return date-
if the registrar is satisfied by sworn evidence, whether oral or by affidavit, that reasonable efforts have been made to serve the summons.
Note
See also section 331 as to the court's general power of adjournment.
17. Summons for summary offence may be served by ordinary serviceRead more...
(1) A summons to answer to a charge for a summary offence must be served personally on the accused in accordance with section 391 unless the informant is satisfied that ordinary service is appropriate in all the circumstances.
Note
Section 394 provides for ordinary service.
(2) In considering whether to effect service of a summons by ordinary service, an informant must consider whether it is an appropriate method of service in all the circumstances as known by the informant including-(a) the nature and gravity of the alleged offence;
(b) whether the accused has previously been found guilty or convicted of any similar offence;
(c) the period of time that has elapsed since the accused's address for service was ascertained.
(3) If a summons is served in accordance with section 394(a), evidence of
service must state-(a) how the informant ascertained the address to which the summons was posted; and
(b) the time and place of posting; and
(c) whether the informant considered the matters referred to in subsection(2) before determining to effect service by post.
16. Personal service of summonsRead more...
Except where otherwise expressly enacted, every summons to answer to a charge must be served personally on the accused in accordance with section 391-(a) subject to paragraph (b), at least 14 days before the return date;
(b) in the case of a charge for an indictable offence in respect of which
a registrar of the Magistrates' Court has fixed a date for a filing hearing, at least 7 days before that date or any other time before that date that is prescribed by the rules of the court.
Note
See section 399(4) for filing in court of affidavit or declaration of service.
15. Contents of summonsRead more...
(1) A summons to answer to a charge must direct the accused to appear at the venue of the Magistrates' Court referred to in section 11 on a specified date and at a specified time to answer the charge.
(2) A summons to answer to a charge for an indictable offence that is to be
served on a corporate accused must state that, if the accused does not appear in answer to the summons, the Magistrates' Court may proceed-
(a) in the case of an indictable offence that may be heard and determined summarily, to hear and determine the charge in the absence of the accused in accordance with Division 10 of Part 3.3; or
(b)in any case, to conduct a committal proceeding in the absence of the
accused in accordance with Chapter 4.
Notes 1
1. See sections 80, 81 and 82 for consequences of failing to appear in answer to a summons.
2. Section 28(1) sets out the indictable offences that may be heard and determined summarily.
14. Police or public official may issue summonsRead more...
(1) Without limiting the power of a registrar of the Magistrates' Court in any way-(a) a member of the police force; or
(b) a public official acting in the performance of his or her duty whether the power to commence the proceeding is conferred on him or her by or under an Act or at common law)-
may, after signing a charge-sheet containing a charge, issue a summons to
answer to the charge.
(2) If a member of the police force or a public official issues a summons
under subsection (1), he or she must file the charge-sheet and summons with
the appropriate registrar within 7 days after signing the charge-sheet.
(3) If it appears to the Magistrates' Court that subsection (2) has not been complied with in relation to a proceeding, the court may strike out the charge.
Note
Section 401(3) allows the court to award costs if a charge is struck out.
13 Summons or warrant to be accompanied by charge-sheet and notice when served
A summons to answer to a charge issued under section 12 or 14 or a warrant to arrest issued under section 12, on service or execution on the accused, must be accompanied by—(a) a copy of the charge-sheet; and
(b) a notice, in the form prescribed by the rules of court, containing—(i) if the charge is for an indictable offence that may not be heard and determined summarily or the charge-sheet contains a request for a committal proceeding, a summary of Part 4.4; and
(ii) if the charge is for any other indictable offence or a summary offence, a summary of Division 2 of Part 3.2; and
(iii) advice that the accused should seek legal advice and that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978; and
(iv) details of how to contact Victoria Legal Aid.
12. Court may issue summons or warrant to arrestRead more...
(1) On the filing of a charge-sheet under section 6, an application may be made to a registrar of the Magistrates' Court for the issue of-
(a) a summons to answer to the charge directed to the accused; or
(b) a warrant to arrest in order to compel the attendance of the accused-
unless a notice to appear has been served on the accused under Division 2.
(2) An application under subsection (1)(b) must be made by the informant
personally but an application under subsection (1)(a) may be made by the
informant or a person on behalf of the informant.
(3) An application under subsection (1) may be made by the applicant in person or by post.
(4) On an application under subsection (1), the registrar must, if satisfied that the charge discloses an offence known to law, issue-
(a) a summons to answer to the charge; or
(b) subject to subsection (5), a warrant to arrest.
(5) A registrar of the Magistrates' Court must not issue in the first instance a warrant to arrest unless satisfied by sworn evidence, whether oral or by affidavit, that-
(a) it is probable that the accused will not answer a summons; or
(b) the accused has absconded, is likely to abscond or is avoiding service
of a summons that has been issued; or
(c) a warrant is required or authorised by any other Act or for other good cause.
Notes
1. If an accused fails to appear in answer to a summons, sections 80 and 81 provide for the issue of a warrant to arrest the accused. Section 330 provides for the issue of a warrant to arrest a person who has been remanded in custody or granted bail to attend a hearing but fails to attend.
2. Section 29 of the Magistrates' Court Act 1989 enables a magistrate to exercise the powers of a registrar to issue a summons or warrant.
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